The opinion of the court was delivered by: Sullivan, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs, Christopher Marcus Johnson and his mother, Pamela Annette
DeNeal. filed this lawsuit alleging violations of the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., and
42 U.S.C. § 1983. Plaintiffs allege that the District of Columbia
Public Schools (DCPS) violated the IDEA's right to counsel and attorney's
fees provisions by including in a settlement offer a waiver of attorneys
fees, and by the subsequent conduct of the DCPS at a hearing in which
plaintiffs challenged the fee waiver provision of the settlement. In
addition to alleging that the DCPS violated plaintiffs' right to counsel
and fees in this particular case, plaintiffs also allege that it is the
DCPS' ongoing custom, policy, and practice to interfere with the
statutory rights to counsel and fees of plaintiffs bringing complaints
pursuant to IDEA, in violation of IDEA and § 1983.
This case comes before the Court on defendant's motion to dismiss.
Defendant argues that plaintiffs waived any right to challenge the
settlement agreement when they entered into that agreement of their own
free will. Defendant also argues that the Supreme Court's decision in
Evans v. Jeff D., 475 U.S. 717, 106 S.Ct. 1531, 89 L.Ed.2d 747 (1986)
precludes plaintiffs' challenge to the fee waiver contained in the
settlement offer and argues that plaintiffs are not entitled to any
attorney's fees after the Supreme Court's decision in Buckhannon Board
and Care Home Inc., v. West Virginia Department of Health and Human
Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).
Therefore, argues defendant, plaintiffs have failed to state a claim
under either IDEA or § 1983.
Also before the Court is plaintiffs' motion for an order barring
implementation of a policy announced by DCPS by way of a memorandum dated
August 31, 2001 ("the Perelman Memo"). In response, defendant
incorporates the arguments raised in its motion to dismiss, as well as
argues that plaintiffs lack standing to challenge this policy.
Upon consideration of defendant's motion to dismiss, and the opposition
and reply thereto, as well as the applicable statutory and case law, the
Court concludes that plaintiffs have stated a claim under both IDEA and
§ 1983. Defendant's motion is hereby DENIED.
Upon consideration of plaintiffs' motion for injunctive relief, the
opposition and reply thereto, as well as the applicable statutory and case
law, the Court concludes that plaintiffs have not established standing to
challenge the policy announced in the August 31, 2001 memorandum.
Plaintiffs' motion is therefore DENIED WITHOUT PREJUDICE to raising the
issue at a later point in this case.
Plaintiff Christopher Marcus Johnson is a child in need of special
education services. Christopher's mother, plaintiff Pamela Annette
DeNeal, hired the services of an attorney, Ronald Drake, to assist her in
acquiring a special education evaluation and services from the DCPS.
Ms. DeNeal alleges that her quest for special education services for
Christopher was protracted unnecessarily by DCPS. After at least a year
of trying to get the DCPS to evaluate her son's need for special
education services, Ms. DeNeal became aware that DCPS may have already
evaluated her son. Plaintiffs' attorney filed a request for a hearing
seeking an order that the DCPS provide plaintiffs with a copy of the
reports of the evaluations of Christopher that DCPS had already
After the filing of the hearing request, plaintiffs' counsel and
counsel for the DCPS entered into settlement negotiations. On January
24, 2001, DCPS, through its counsel Jeffrey Kaplan, made a settlement
offer that agreed to much more than the relief plaintiffs were seeking at
their requested hearing. In particular, the settlement offer stated that
DCPS would convene a placement meeting to determine Christopher's
eligibility for special services within 10 days of the receipt of all
independent evaluation reports. If Christopher was found eligible, DCPS
agreed to develop an individualized education plan, and send referrals to
at least three schools proposed by Christopher's parents. DCPS agreed to
issue a notice of placement within 10 days of Christopher's being found
eligible for services. DCPS also agreed, in the event that Christopher
was found eligible for services, to immediately award fifty hours of
one-on-one tutoring as compensatory education for past denials of such
requests. DCPS agreed to fund this tutoring within certain limits. See
Complaint, Ex. 2.
DCPS conditioned the settlement offer on the following term: "The
parent waives any right to prevailing party status and will not seek legal
fees and associated costs in regard to this matter." Complaint, Ex. 2.
Plaintiffs' counsel recognized that the simultaneous generous offer of
services and waiver of attorneys' fees created a conflict between the
interest of counsel and interest of the plaintiffs. When Mr. Drake
relayed the terms of this settlement offer to Ms. DeNeal, she also
recognized the conflict. Despite this conflict, Ms. DeNeal instructed her
counsel to sign the settlement offer on her behalf because it was in
Christopher's best interest. The settlement offer was signed on January
24, 2001. Ms. DeNeal also authorized her counsel to request an
administrative hearing to assert her complaint that the DCPS had violated
her right to counsel under IDEA by inserting the fee waiver language into
the settlement offer.
The hearing was scheduled for March 1, 2001. Prior to the hearing, on
February 22, 2001, DCPS sent Mr. Drake a "Disclosure Notice" that
included a list of proposed witnesses for the upcoming hearing.
Those witnesses included Mr. Drake, counsel for plaintiffs, and three
famous dead authors, including "J.P. Sartre," "B. Brecht," and "L.
Carroll." Complaint, Ex. 3. That notice was signed by Mr. Kaplan. At the
hearing on March 1, 2001, Mr. Drake objected to being called as a witness
and to the content of the Disclosure Notice generally. Mr. Drake offered
the Disclosure Notice as further evidence of DCPS' actions with respect
to interference with his clients' right to counsel. The hearing officer
refused to admit the Notice into evidence. Plaintiffs allege that at the
hearing, DCPS orally moved to strike Mr. Drake's name from the witness
list, but refused to withdraw the Disclosure Notice. The hearing
officer's written determination, see Complaint, Ex. 1, states that the
Disclosure Notice was not entered into evidence because Mr. Kaplan spoke
with Mr. Drake about it on February 22, 2001 and withdrew the notice.
At the hearing, Mr. Drake attempted to offer written stipulated facts
into the record, but DCPS refused to agree to those stipulations.
Complaint, Ex. 4. Mr. Drake then attempted to enter those facts into
evidence as proffers, but the document was not accepted into the record.
Ms. DeNeal had waived her right to be present at the hearing, and
plaintiffs' counsel did not intend to call her as a witness. However, the
hearing officer ruled that plaintiff must testify in order to challenge
the settlement agreement. After she ruled that Ms. DeNeal, who was not
present, must testify, the hearing officer then denied plaintiffs'
counsel's request to continue the hearing in order to be allowed time for
Ms. DeNeal to present testimony. The hearing officer then dismissed the
The hearing officer's written determination offers two conflicting
grounds for dismissing the case. The hearing officer first holds that she
did not have jurisdiction to hear a challenge to a settlement agreement
on the grounds that the proposed fee waiver impermissibly interfered with
plaintiffs' right to counsel under IDEA. However, the hearing officer then
concluded the evidence established that plaintiff voluntarily entered
into the settlement agreement and that there was no evidence of
coercion, duress, or lack of understanding. The hearing officer also
concluded that there was no evidence that the provision of an appropriate
educational placement for Christopher was jeopardized by the agreement,
and consequently dismissed the complaint.
Plaintiffs filed this lawsuit on March 12, 2001 alleging that the DCPS
had violated IDEA and § 1983. On September 4, 2001, plaintiffs filed
a motion for an order barring the implementation of a DCPS policy
reflected in a memorandum issued on August 31, 2001. See Plfs' Motion,
Ex. 1. The memorandum was issued by Paula Perelman, Executive Director,
Mediation and Compliance, Division of Special Education, DCPS. Id. The
Perelman Memo was addressed to "Attorneys Who Represent Parents Who
Prevail Against the D.C. Public Schools in Actions Brought Under the
Individuals with Disabilities Act." It stated that pursuant to its
interpretation of the Supreme Court's May 29, 2001 decision in
effective September 1, 2001, DCPS will not pay
attorneys' fees incurred in the course of executing a
settlement agreement with an attorney representing a
parent who alleges a DCPS violation of the IDEA unless
the payment of these fees is a negotiated term of the
settlement agreement in question.
I. Defendant's Motion to Dismiss
The Court will not grant a motion to dismiss for failure to state a
to Federal Rule of Civil Procedure 12(b)(6) "unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kowal v. MCI Communications
Corp., 16 F.3d 1271, 1276 (D.C.Cir. 1994). Accordingly, at this stage of
the proceedings, the Court must accept as true all of the complaint's
factual allegations. See Doe v. United States Dep't of Justice,
753 F.2d 1092, ...